IN THE HIGH COURT OF LESOTHO
In the matter of :
THAKELI MAKHESI Plaintiff
THE OFFICER COMMANDING POLICE (Mafeteng) 1st Defendant
THE ATTORNEY-GENERAL 2nd Defendant
Delivered by the Hon. Mr. Justice J.L. Kheola on the 3rd day of February, 1988
The plaintiff is the manager of Hotel Mafeteng. He is claiming damages in the sum of M15,000.00 and costs of suit arising from unlawful arrest, unlawful detention and for loss of reputation.
It is common cause that in February, 1986 the plaintiff made a report at the offices of the 1st defendant that armed robbery had occurred at Hotel Mafeteng and that money belonging to the hotel had beer taken by the robbers. The plaintiff was interviewed and interrogated about the robbery and gave a detailed account of what had happened.
He said that on the night of the robbery he was sleeping in his hotel room and the door was locked. When he woke up he found that there were people in his room. They were pointing firearms at him and demanding that he must give them the hotel money. They handcuffed him and drove him saying that he should show them where the money was kept. When he told them that he knew nothing about the money, one of the robbers threatened to kill him. The plaintiff says that he had no alternative but to comply opened
opened the safe for them and they took the money in the amount of about M3,000.00.
Immediately after the robbers had left the plaintiff raised an alarm and also made a report at the offices of the 1st defendant. As a result of the description of the robbers given to the police by the plaintiff, some people have been arrested and charged with the offence of armed robbery. The trial is still in progress at the Mafeteng Magistrate's Court.
It is also common cause that about two weeks after the armed robbery, i.e. on the 21st March, 1986 Trooper Lephoto and Trooper Mosala went to Hotel Mafeteng and arrested the plaintiff and escorted him to the charge office for interrogation about the alleged robbery. He was detained from 7.00 p.m. on the 21st March, 1986 until 5.00 p.m. on the 23rd March, 1986 when he was released without any criminal charge being laid against him.
It is common cause that Trooper Lephoto and Trooper Mosala were acting within the scope of their employment as servants of the Government of Lesotho when they arrested and detained the applicant.
Trooper Lephoto testified that when they arrived at the hotel they found the plaintiff in the private bar where there were many people. They asked him to accompany them to the charge office because they wanted to confront him with certain people who implicated him in the commission of the armed robbery which he had reported. The plaintiff became very angry and refused to accompany them. It was then that they handcuffed him and escorted him to the charge office. He was interrogated but he denied any criminal involvement in the armed robbery he had reported to the police. Trooper Lephoto deposed that the informers, whose names he could not disclose, had given them information that the plaintiff was involved in the armed robbery, apparently in the sense that he had planned with some people to steal the hotel money in what would appear to be a robbery.
Under cross-examination Trooper Lephoto said that
when they went to Hotel Mafeteng to arrest the plaintiff they were obeying the orders of their superior officer and as part of their duty. He said he never applied for a warrant of the arrest of the plaintiff. When he was asked by the Court why he did not release the plaintiff on the night of the 21st March, 1986 after the completion of the interrogation, Trooper Lephoto said that they wanted to go and check or verify what he had told them.
It is not clear from the evidence of Trooper Lephoto whether he and Trooper Mosela arrested the plaintiff merely because they were obeying orders from their superior or that they assessed the information they received from the informers and then suspected that the plaintiff was criminally involved in the armed robbery. At one stage Trooper Lephoto said, "It was not through my own free will that I arrested the plaintiff." This sentence gives one the impression that he was merely obeying orders emanating from his seniors.
The arrest by a peace officer without a warrant is governed by section 24 of the Criminal Procedure and Evidence Act No.7 of 1981 which reads as follows :
"Every peace officer and every other officer empowered by law to execute criminal warrants may arrest without warrant -
every person who commits any offence in his presence;
every person whom he has reasonable grounds to suspect of having committed any of the offences mentioned in part 11 of the First Schedule;
every person whom he finds attempting to commit an offence or clearly manifesting an intention to do so."
It seems to me that in the instant case the relevant sub-section is (b). It has been held in a number of cases that the arrest itself is prima facie such an odious interference with the liberty of the citizen that animus in juriandi is thereby presumed in our law, and no allegation of actual subjective animus injuriandi is necessary (Foulds v Smith. 1950(1) S.A. 1 (A.D.)) at p. 11;
Thompson & Another v Minister of Police & Another, 1971(1) S.A. 371 at p. 374). In such a case the plaintiff need only prove the arrest itself and the onus will then lie on the person responsible to establish that it was legally justified. (Theron v Steenkamp, 1928 C.P.D. 429 at p. 432, Ingram v Minister of Justice, 1962(3) S.A. 225 at p. 227; Rosseau v Boshoff, 1945 C.P.D. 135).
The more recital of the facts of the present case makes it quite clear that Trooper Lephoto did not have a suspicion based on reasonable grounds that the plaintiff was involved in the alleged armed robbery before he decided or was instructed by his superiors to go and arrest the plaintif. The facts arc that he received information from his informers that the plaintiff had simulated an armed robbery in concert with other people. The question is whether that information was sufficient to arouse suspicion based on reasonable grounds that the plaintiff had been involved in the simulation of the armed robbery. In Rosseau v Boshoff (supra) it was held that in determining whether he had such reasonable grounds or not, the Court must consider whether he had exercised his powers as an ordinary honest man would act, and not merely act on wild suspicions, but on suspicions which have a reasonable basis. Detective Sergeant Boshoff had received a report from complainant that he had been assaulted and robbed of his bicycle. Earlier Rosseau had brought a bicycle to the charge office and alleged that he found it abandoned in the street. Before he arrested Rosseau, Sgt. Boshoff went to the scene of the alleged crime and collected broken glasses which were similar to those found on the lamp of the bicycle; he interviewed the complainant at length and found that his story was corroborated by other evidence; he interviewed Rosseau and found that he contradicted himself and that his story was untrue. He finally arrested him. The Court held that his suspicions were based on reasonable grounds.
In the present case Trooper Lephoto acted on the uncorroborated Information from his informers that the
plaintiff was criminally involved in the armed robbery he reported to the police. He or his superiors did not confirm the information they had received with any evidence from an independent source. Trooper Lephoto ought bo have made further investigations to confirm the story of his informers before he decided to arrest the plaintiff. I am of the opinion that his wild suspicions had no reasonable basis. In any case, in the whole of his evidence he never told the Court that he had reasonable grounds for suspecting that the plaintiff had committed any offence mentioned in Part 11 of the First Schedule. He says that he was obeying orders from his superiors and at the same time he says that he was doing his duty. He never said that after receiving the information he made his own deductions and came to the conclusion or formed the suspicion that the plaintiff had committed any offence listed in Part 11 of the First Schedule.
Mr. Monad, counsel for the defendants, merely makes a bold statement that the arrest was lawful because there was information that the plaintiff was involved in the armed robbery. The question is whether the information that the plaintiff was involved in the robbery is a reasonable ground on which an ordinary honest men would base his suspicion. The answer must be in the negative. The information was unsubstantiated and an ordinary honest man would not have founded his suspicions on it.
I have always wondered why peace officers in this country rarely apply for a warrant of arrest where there is nothing to show that the obtaining of the warrant would defeat the very purpose for which it is sought. The present plaintiff is a citizen of Lesotho and has his home at Letloepe in Qacha's Nek. He resides at Hotel Mafeteng where he is the manager. There was no evidence to show that he was about to leave his job and abscond. There was no urgency at all and the plaintiff was unaware that the informers had been to the police and that he was about to be arrested. The police ought to have obtained a sworn statement from their witness and then applied for a warrant of arrest. They took the risk of
arresting him when they knew very well that they did not have any reasonable grounds for suspecting him of having committed any offence.
If a warrant of arrest had been obtained it would be a good defence against the claim for unlawful arrest and detention provided that it was issued in circumstances in which its issue was legally justified. See May v Union Government, 1954(3) S.A. 120 section 33 of the Criminal Procedure and Evidence Act 1981).
For the reasons I have attempted to summarize above I come to the conclusion that the defendants have failed to discharge the onus which lay on them to establish on a balance of probabilities that the arrest was made on a suspicion based on reasonable grounds. It follows that the detention based on the unlawful arrest was also unlawful. There is no doubt in my mind that the act complained of constituted an aggression upon the reputation of the plaintiff. He was arrested in the presence of his customers in the private bar of the hotel where he is the manager. He was escorted away in handcuffs like a common criminal. He was then detained for about two days. I am convinced that all these acts must have seriously affected his reputation as manager of Hotel Mafeteng;
I shall now deal with the question of quantum of damages which is usually very difficult because there is no measure of damages in the sense of an approximate standard of money value. In the case of Solicitor General v Mapetla. C. of A. (CIV) No. 17 of 1984 (unreported) the Court of Appeal awarded M8000 for unlawful arrest, detention and assault. In that case there were aggravating circumstances because whilst in custody the plaintiff was insulted, threatened and physically assaulted. The respondent was an elderly man of nearly 78 years of age and was a man of standing in the Kingdom of Lesotho He was a chief. In the present case the plaintiff is a man of standing but there is no evidence that he was in any way assaulted or humiliated whilst in custody. He was detained for about two days. The other cases I have
read are so old that it is not easy to accurately assess depreciation in money during the last several years.
In assessing damages I must take into consideration that there was not scintilla of evidence to suggest that Trooper Lephoto had any suspicion based on reasonable grounds that the plaintiff had committed any offence. He apparently obeyed orders from his superiors and is therefore not protected by section 24(b) of the Criminal Procedure and Evidence Act 1981 which requires that the peace officer making the arrest should personally have reasonable grounds for suspecting that the person to be arrested has committed an offence mentioned in Part 11 of the First Schedule.
Taking into account all the relevant circumstances, I find that an amount of M4500.00 would be an appropriate amount.
Judgment is entered for the plaintiff in the amount of M4500.00 divided as follows :-
M2,000.00 for damages arising from unlawful arrest,
M1500.00 for damages arising from unlawful detention;
M1000.00 for loss of reputation;
Costs of suit.
J U D G E.
3rd February, 1988.
For Plaintiff : Mr. Nthethe
For Defendant : Mr. Mohapi.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law